Exhibit 10.5
AMENDED & RESTATED ACCOUNTS RECEIVABLE FINANCING
AND
ESCROW AGREEMENT
This AMENDED & RESTATED ACCOUNTS RECEIVABLE FINANCING AND ESCROW AGREEMENT,
dated as of July 31, 2005 (the "AGREEMENT"), is made by and among Eastech
Electronics (Taiwan) Inc., a Taiwanese corporation (the "MANUFACTURER"),
Handheld Entertainment, Inc., a California corporation (the "COMPANY"), and
Xxxxxx Curls Xxxxxxxx LLP, a California limited liability partnership law firm
(formerly known as Xxxxxx & Diamond LLP, the "ESCROW AGENT").
WHEREAS, the parties hereto have previously entered into that certain
Accounts Receivable Financing and Escrow Agreement dated as of April 28, 2004
(the "Existing Escrow Agreement") in order to, among other things, provide that
an escrow account be established, into which substantially all proceeds arising
out of the Company's sales or other dispositions of ZVUE! players Ver. 1.1 (such
players, the "Basic Players") were and continue to be deposited, and from which
the Manufacturer shall be remitted funds directly;
WHEREAS, the parties hereto have agreed to expand their relationship to
cover ZVUE! Ver. 1.2 and ZVUE! Ver. 2.0 video players (collectively, the
"Enhanced Players" and, collectively with the Basic Players, the "Players") and
desire to amend and restate the terms and conditions of the Existing Escrow
Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, and for other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, it is hereby agreed as follows:
1. Appointment of Escrow Agent. The Manufacturer and the Company hereby
designate and appoint the Escrow Agent as escrow agent to act in accordance with
the terms of this Agreement, and the Escrow Agent agrees to act as such escrow
agent on the terms, conditions and provisions provided in this Agreement.
2. Deposits to Escrow Account. Upon execution of this Agreement, the
Company shall instruct all persons or entities purchasing, leasing or otherwise
acquiring Players from the Company to make payment for such players to the
account established pursuant to this Agreement (the "ESCROW ACCOUNT"); provided
however, that the Company shall not be obligated to instruct persons or entities
(other than letter of credit banks) owing less than U.S. $1,500 in the aggregate
to make such payments to the Escrow Account. All of such funds, whenever
deposited, together with interest, if any, accrued thereon, shall be hereinafter
referred to as the "ESCROW FUNDS." The Escrow Agent shall hold and dispose of
the Escrow Funds in accordance with the terms and conditions of this Agreement.
3. Payments From Escrow Funds.
(a) The Escrow Agent shall hold the Escrow Funds in accordance with
this Agreement and shall make payments from the Escrow Funds only as provided by
this Section 3.
(b) Following receipt of funds deposited in the Escrow Account by
customers of the Company and the clearing of such funds in accordance with the
normal business practices for clearing checks by the bank maintaining the Escrow
Account (checks are considered cleared after seven (7) business days), the
Escrow Agent shall, as soon as practicable, but in no event more than two
business days after the clearing of such funds:
(i) with respect to any funds relating to the sale or other
disposition of Basic Players, subject to clause (iii) below,
transfer seventy percent (70%) of such Escrow Funds to the
Manufacturer, and thirty percent (30%) to the Company, using such
transfer procedures as have been provided to the Escrow Agent,
(ii) with respect to any funds relating to the sale or other
disposition of Enhanced Players, transfer one hundred percent
(100%) of the Manufacturer's Selling Price (as defined below) of
the Enhanced Players to the Manufacturer, with any funds in excess
of such amount being transferred to the Company, using such
transfer procedures as have been provided to the Escrow Agent, and
(iii) if at any time the Manufacturer shall notify the Escrow Agent
that Company has failed to deliver to Manufacturer an updated list
of receivables as required by Section 5 of the Security Agreement
(as defined below) then until such time as the Manufacturer shall
notify the Escrow Agent that the Company has complied with such
obligation one hundred percent (100%) of available Escrow Funds
relating to the Basic Players shall be transferred to the
Manufacturer using such transfer procedures as have been provided
to the Escrow Agent, and
(iv) in the event the transfers to Manufacturer required by (i),
(ii) or (iii) above would exceed the then outstanding balance of
all indebtedness of the Company to Manufacturer ("Outstanding
Balance"), transfer to Manufacturer the full Outstanding Balance,
and transfer to the Company the then remaining Escrow Funds.
As used herein, "Manufacturer's Selling Price" shall mean with respect to
each Enhanced Player the price specified, per unit, in the Manufacturer's
invoice relating to the Enhanced Players to which the specific payment received
by the Escrow Agent relates; provided, however that in the event the Escrow
Agent does not have sufficient information to determine to which invoice the
payment relates, the Escrow Agent shall apply such payments to invoices for
Enhanced Players on a first in first out basis. As required by Section 5 of the
Security Agreement, the Company shall provide the Manufacturer and the Escrow
Agent a bi-weekly updated report of all receivables outstanding in excess of
$1,500 in respect of Basic Players and Enhanced Players and a report of all
unsold inventory and monthly financial statements. In
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addition, each the Company and the Manufacturer shall provide the Escrow Agent
and the other party hereto with any information reasonably requested by the
Escrow Agent or the other party hereto necessary to assist the Escrow Agent in
determining (1) the Manufacturer's Selling Price for any Enhanced Player and/or
(2) to which Players any payment relates.
(c) Escrow Agent shall not transfer to the Manufacturer less than the
amount of funds specified in Section (b) above unless it shall have received
confirmation from Manufacturer of the then Outstanding Balance and such
Outstanding Balance shall be less than the amount then required to the
transferred pursuant to Subsection (b), in which case the Escrow Agent shall
transfer to the Manufacturer the Outstanding Balance. In the event that Escrow
Agent shall have insufficient information to determine whether funds deposited
in the Escrow Account relate to Basic Players or Enhanced Players, such funds
shall be treated as relating to Enhanced Players.
(d) Funds shall be transferred to the accounts designated by the
Manufacturer and the Company on Exhibit A hereto. Such accounts may be changed
by each of the Manufacturer and the Company by notice to the Escrow Agent as
provided in Section 16 herein; provided that the Escrow Agent may require the
party issuing such notice to agree to appropriate security procedures to verify
that the instructions contained in such notice are those of such issuing party.
(e) Notwithstanding the foregoing, in order to minimize expenses
Escrow Agent shall not be required to automatically wire funds to the
Manufacturer if the aggregate amount of such funds is less than $10,000;
provided, however the Manufacturer may at any time by notice to the Escrow Agent
require the wiring of amounts less than $10,000.
4. Escrow Account. The Escrow Agent shall establish the Escrow Account as
an Attorney Trust Account with such bank with offices in San Francisco,
California, as it shall deem appropriate. Xxxxxx X. Xxxxxx shall be the only
signatory on the Escrow Account. The Escrow Agent shall provide each of the
Manufacturer and the Company with complete information concerning the Escrow
Account, including a telephone access code allowing each to determine the
balance of the Escrow Account on any banking day.
5. Additional Security. The Company has agreed to provide the
Manufacturer additional security for the repayment of the Outstanding Balance
that may be due from time to time, by an Amended & Restated Security Agreement
dated as of the date hereof (the "Amended & Restated Security Agreement"),
perfected by one or more UCC filings, whereby Manufacturer will have a security
interest in all of the personal property of the Company, including, without
limitation, the Players, all accounts receivable whether resulting from sales or
other dispositions of Players or any other transaction and whether or not
payment of any such account receivable is required to be made to the Escrow
Account, all intellectual property of the Company and without limiting the
foregoing, all rights to payment for any Players sold, leased or otherwise
disposed of by the Borrower (whether constituting accounts, chattel paper,
instruments, general intangibles or otherwise), all evidences of such
indebtedness, and all guarantees, letters of credit and security interests
guaranteeing, supporting or securing any of the foregoing and all proceeds
thereof.
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6. Customer Approval for Enhanced Players.
(a) Subject to paragraph (b) of this Section 6, Company shall not sell
or otherwise dispose of any Enhanced Players to any customer or other person or
entity (collectively, each a "Customer") unless Manufacturer shall have approved
of such Customer in writing (each such customer for whom Manufacturer shall have
given written approval, an "Approved Customer"). Company shall use its
reasonable efforts to provide Manufacturer with such financial and other
information as Manufacturer shall request to enable it to evaluate Customer. As
a condition for its approval, Manufacturer may impose limits on the number or
dollar amount of Enhanced Players that may be sold to any Customer. Manufacturer
may withdraw its approval of any Customer and in such event Company shall
fulfill any legally binding orders previously approved but shall not accept or
fulfill new orders with respect to such Customer.
(b) Notwithstanding paragraph (a) of this Section 6, Company may also
sell Enhanced Players to any Customer, whether or not such Customer is an
Approved Customer, so long (i) as the number of Enhanced Players sold to any
Customer and affiliates of the Customer in any 30 day period shall not exceed
200 Enhanced Players and (ii) at the time of any such sale such Customer is not
delinquent in its payment obligations to Company. In addition, Company may also
sell an unlimited number of Enhanced Players to any Customer, whether or not
such Customer is an Approved Customer, so long as (i) the full amount of such
Customer's payment obligations is backed an irrevocable letter of credit from a
reputable financial institution and (ii) (A) such letter of credit names Escrow
Agent as a original beneficiary thereof, (B) such letter of credit is
transferred to the Escrow Agent such that the Escrow Agent is the transferee
beneficiary, (C) a back to back letter of credit has been issued in respect
thereof in the full amount of such letter of credit or (D) the Company has
irrevocably assigned all proceeds of the letter of credit to the Escrow Agent
and the issuer of the letter of credit has consented to such assignment in
writing.
7. Right of Sale. The Company hereby grants the Manufacturer the right
(but not the obligation) to sell any Players that have remained unsold for more
than sixty (60) calendar days after the date that the manufacture of such goods
has been completed provided that such Players are in the possession or control
of Manufacturer. Manufacturer shall have the right (but not the obligation) to
cancel any sale of such Players to the Company and Manufacturer shall be free to
sell such Players for its own account. For avoidance of doubt, such right of
sale shall not apply to Players that are in the possession and control of the
Company.
8. Termination.
(a) This Agreement shall terminate on the date on which the Escrow
Agent shall have been notified in writing by Manufacturer and the Company that
this Agreement shall be terminated.
(b) Upon termination of this Agreement as set forth in this Section 7,
the Escrow Agent shall be discharged from all further obligations or
responsibilities hereunder
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except for the proper transfer of any remaining Escrow Funds in accordance with
the provisions of Section 3.
9. Duties of Escrow Agent. The instructions of the parties set forth
herein are irrevocable, and the Escrow Agent shall act only in accordance with
such instructions and in any amendment or amendments executed by all parties
hereto and not in accordance with any contrary instructions from any third
person, or from fewer than all of the parties hereto, except as specifically
provided in Section 3(c) hereof. The duties and obligations of the Escrow Agent
shall be determined solely by the express provisions of this Agreement, and the
Escrow Agent shall not be liable except for the performance of its duties and
obligations as are specifically set forth herein.
The Escrow Agent shall provide to the Company and the Manufacturer
monthly statements reflecting all deposits to and distributions from the Escrow
Account. The Escrow Agent shall accept as valid only those instructions signed
by the respective party's Authorized Representative, as specified in Exhibit B,
or in the then effective revision to Exhibit B which has been provided to the
Escrow Agent in a Notice given as specified in Section 16.
10. Liability of Escrow Agent. In order to induce the Escrow Agent to act
as escrow agent hereunder, the parties hereto agree that:
(a) the Escrow Agent shall not in any way be bound or affected by any
amendment or modification of this Agreement, unless the same shall have been
agreed to in writing by the Escrow Agent;
(b) the Escrow Agent shall not be under any duty to give the property
held hereunder any greater degree of care than it gives its own similar
property;
(c) the Escrow Agent may act in reliance upon and shall incur no
liability for or in respect of any action taken or omitted to be taken or
anything suffered by it in reliance upon, any notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably believed
by the Escrow Agent to be genuine and to have been presented or signed by the
proper party or parties;
(d) the Escrow Agent shall not at any time be under any duty or
responsibility to make a determination of any facts contained in any certificate
delivered pursuant hereto or to make any independent verification of the
statements or signatures in such certificate or amounts delivered thereby. The
Escrow Agent shall not be responsible for any failure by the Manufacturer or the
Company to comply with any of their respective covenants contained in this
Agreement or any other agreement and the Escrow Agent shall not be responsible
or chargeable with knowledge of the terms of any other agreements among the
other parties;
(e) the Escrow Agent shall be under no duty or obligation to take any
legal action in connection with this Agreement or to enforce, through the
institution of legal proceedings or otherwise, any of its rights as Escrow Agent
hereunder or any rights of any other party hereto pursuant to this Escrow
Agreement or any other agreement, nor shall it be required
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to defend any action or legal proceeding which, in its opinion, would or might
involve the Escrow Agent in any cost, expense, loss or liability;
(f) notwithstanding anything to the contrary contained herein, if the
Escrow Agent shall be uncertain as to its duties or rights hereunder, shall
receive any notice, advice, direction, or other document from any other party
with respect to this Agreement which, in its opinion, is in conflict with any of
the provisions of this Agreement, or should be advised that a dispute has arisen
with respect to the payment, ownership, or right of possession of or to the
Escrow Funds or any part thereof (or as to the delivery, non-delivery, or
content of any notice, advice, direction or other document), the Escrow Agent
shall be entitled (but not obligated), without liability to anyone, to refrain
from taking any action other than to use its best efforts to keep safely the
Escrow Funds until the Escrow Agent shall be directed otherwise in writing by
the other parties hereto or by an order, decree or judgment of a court of
competent jurisdiction which has been finally affirmed on appeal or which by
lapse of time or otherwise is no longer subject to appeal, but the Escrow Agent
shall be under no duty to institute or to defend any proceeding, although it may
institute or defend such proceedings;
(g) The Manufacturer and the Company hereby authorize the Escrow
Agent, if the Escrow Agent is threatened with litigation or is sued, to
interplead all interested parties in any court of competent jurisdiction and to
deposit the Escrow Funds with the clerk of that court; and
(h) This Agreement sets forth exclusively the duties of the Escrow
Agent with respect to any and all matters pertinent hereto and no implied duties
or obligations shall be read into this Agreement against the Escrow Agent.
11. Indemnification.
(a) The Company covenants and agrees to indemnify and hold harmless
the Escrow Agent against any costs or expenses (including attorneys' fees and
expenses), judgments, fines, losses, claims, damages, liabilities and amounts
paid in settlement in connection with any claim, action, suit, proceeding or
investigation arising out of or pertaining to this Agreement, and in the event
of any such claim, action, suit, proceeding or investigation: (i) the Company
shall pay the reasonable fees and expenses of counsel selected by the Escrow
Agent, promptly as statements therefor are received; and (ii) the Company will
cooperate in the defense of any such matter; except that the Company shall not
have any obligation to indemnify the Escrow Agent against any cost, expense,
judgment, fine, loss, claim, damage, liability or settlement amount arising out
of or pertaining to this Agreement arising from the Escrow Agent's own gross
negligence or willful misconduct. The obligations of the Company under this
paragraph shall survive: (x) the delivery of the Escrow Funds pursuant to this
Agreement; (y) the termination of this Agreement; and (z) the resignation or
removal of the Escrow Agent.
(b) The Manufacturer and the Company jointly and severally agree to
assume any and all obligations imposed now or hereafter by any applicable tax
law with respect to the payment of Escrow Funds or any portion thereof under
this Agreement, and to indemnify and hold the Escrow Agent harmless from and
against any taxes, additions for late payment, interest,
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penalties and other expenses, that may be assessed against the Escrow Agent on
any such payment or other activities under this Agreement. The Manufacturer and
the Company undertake to instruct the Escrow Agent in writing with respect to
the Escrow Agent's responsibility for withholding and other taxes, assessments
or other governmental charges, certifications and governmental reporting in
connection with its acting as Escrow Agent under this Agreement. The
Manufacturer and the Company, jointly and severally, agree to indemnify and hold
the Escrow Agent harmless from any liability on account of taxes, assessments or
other governmental charges, including without limitation the withholding or
deduction or the failure to obtain proper certifications or to properly report
to governmental authorities, to which the Escrow Agent may be or become subject
in connection with or which arises out of this Agreement, including costs and
expenses (including reasonable legal fees), interest and penalties.
12. Resignation. The Escrow Agent may at any time resign as Escrow Agent
by mailing written notice to the Manufacturer and the Company of such intention
on its part, specifying the date on which its desired resignation is intended to
become effective. Upon receiving such notice of resignation, the Manufacturer
and the Company shall promptly appoint a successor escrow agent by written
instrument signed on behalf of the Manufacturer and the Company, one copy of
which shall be delivered to each of the resigning Escrow Agent and the successor
escrow agent. If the Manufacturer and the Company shall fail to make such
appointment within a period of 30 days after they have been notified in writing
of such resignation by the resigning Escrow Agent, then the resigning Escrow
Agent may apply to any court of competent jurisdiction in the State of
California for the appointment of a successor escrow agent. Such resignation
shall become effective upon the acceptance of the appointment by the successor
escrow agent as provided in this Section 12. Upon resignation, the Escrow Agent
shall be entitled to payment by the Company of any amounts then due it
hereunder. Any successor escrow agent shall have all the rights, obligations and
immunities of the Escrow Agent set forth herein.
13. Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but except as set forth in Section 12, neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto without the prior written consent of
the other parties, nor is this Agreement intended to confer upon any other
person except the parties hereto any rights or remedies hereunder.
14. Banking Days. If any date on which the Escrow Agent is required to
make a distribution pursuant to the provisions hereof is not a banking day, then
the Escrow Agent shall make such distribution on the next succeeding banking
day.
15. Escrow Costs and Legal Fees. The fees, costs and expenses incurred by
the Escrow Agent hereunder shall be borne by the Company. The Escrow Agent has
agreed to charge for its services hereunder only the normal fees for services
and expense reimbursement charges that it actually incurs in discharging its
duties hereunder, according to the existing Contract for Legal Services between
the Company and the Escrow Agent. The Company hereby agrees to promptly
reimburse all legal fees and expenses incurred by the Manufacturer in
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connection with the negotiation, execution and delivery of this Agreement and
the Amended & Restated Security Agreement.
16. Notices. All notices and other communications pursuant to or in
connection with this Agreement shall be in writing and shall be deemed to have
been given and received when actually hand delivered, one business day after
dispatch by telegraphic means (including facsimile transmission), two business
days after dispatch by recognized overnight delivery service, or seven days
after mailing by certified or registered mail with proper postage affixed and
return receipt requested, in each case to the address of the party set forth on
the signature page below (or to any changed address provided by any party to the
other parties by notice given as provided herein).
17. Amendment and Modification. This Agreement may be amended, modified or
supplemented only by written agreement of each of the parties hereto.
18. Governing Law. This Agreement shall be governed by the laws of the
State of California (regardless of conflicts of law principles) as to all
matters.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
20. Interpretation. The section headings contained in this Agreement are
solely for the purpose of reference, are not part of this Agreement and shall
not in any way effect the meaning or interpretation of this Agreement.
21. Entire Agreement. This Agreement, including the exhibit and schedule
attached hereto, embodies the entire agreement and understanding of the parties
hereto in respect of the subject matter hereof. There are no restrictions,
promises, representations, warranties, covenants or undertakings, other than
those expressly set forth or referred to herein or therein.
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22. Law Firm Relationship. Escrow Agent is general counsel to the Company.
To the extent any action, or failure to act, that may be required of Escrow
Agent by the terms of this Agreement should in any way conflict with any duty
owed, or claimed by the Company to be owed, to the Company, the Company hereby
instructs Escrow Agent to perform its duties as it determines are required by
the terms of this Agreement, and the Company hereby waives any right it may
otherwise have to assert that such action, or failure to act, by Escrow Agent
violates Escrow Agent's duties, fiduciary or otherwise, to the Company. By
execution of this Agreement, Manufacturer acknowledges that Escrow Agent is the
Attorney for the Company, and that it has no duties to Manufacturer except those
specifically set forth in this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first written above.
COMPANY: MANUFACTURER:
HANDHELD ENTERTAINMENT, INC. EASTECH ELECTRONICS (TAIWAN) INC.
/s/Xxxx Oscodar
--------------------------------- /s/Xxx Xxxx
Signature ----------------------------------
Name: Xxxx Oscodar Signature
Title: President & Name: Xxx Xxxx
Chief Executive Officer --------------------------
Title:
00 Xxx Xxxxxxxxxx Xx., 0xx Floor --------------------------
Xxx Xxxxxxxxx, XX 00000 13 FL, Xx. 00, XXX. 0, Xxxxxx Xxxx,
Phone: (000) 000-0000 Luchu shiang
Fax: (000) 000-0000 Taoyuan Hsien, Taiwan, R.O.C.
Phone: 000-0-0000000
Fax: 000-0-0000000
ESCROW AGENT:
XXXXXX CURLS XXXXXXXX LLP
BY:/s/Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx, a Partner
00 Xxx Xxxxxxxxxx Xx., 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
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